In 1998 and 1999, Dr. Gordon C. Tucker, Jr., then working for Golder Associates,
Inc., was the Principal Investigator for archaeological investigations at
the Semiahmoo site (45WH17). This site, a historically documented village
of the Lummi Tribe, included an extensive cemetery and today continues to
be a place of great significance to the Lummi Tribe. The archaeological investigation
consisted of a mitigation excavation, followed by monitoring of construction
activities. The archaeological monitoring portion of the investigation and
associated construction project were prematurely brought to a halt and several
lawsuits were filed. The Lummi Tribe and the Association of Washington Archaeologists
filed a complaint against Dr. Tucker with the Register of Professional Archaeologists
(RPA), alleging numerous violations of the Code of Conduct and Standards of
Research Performance. This Decision details the results of the complaint process
and the formal investigation into this matter.

In the following sections, a detailed history of the archaeological project
is presented to establish the context of the allegations. This is followed
by a brief history of the case as it proceeded through the RPA Grievance procedure.
Then the Findings of the Standards Board with respect to each allegation identified
in the Grievance Committee’s Formal Complaint are discussed. This Decision
concludes with a statement of Disciplinary Action imposed upon Dr. Tucker.

The
Planning

In 1996, the City of Blaine in Whatcom
County, Washington, proposed to expand and upgrade its existing wastewater
treatment plant located on the Semiahmoo Spit in order to meet the City’s
needs over the next twenty years. The existing plant was known to be located
within an important prehistoric village site, 45WH17, where past archaeological
investigations had revealed a stratified shell midden site dating from 4,200
years ago to the ethnohistoric period, and where dozens of human burials had
been recovered. The site was known to be important to the local Lummi Tribe.

Funding for the sewage plant expansion
was provided in part by the U.S. Department of Agriculture Rural Development
Agency (Rural Development). This federal funding required Rural Development
to comply with various federal statutes such as the National Environmental
Policy Act and the National Historic Preservation Act. Specifically, the project
would need to comply with Section 106 of the NHPA, which would require evaluating
the archaeological site for National Register eligibility, and if eligible,
mitigating any adverse effects associated with the construction.

The City of Blaine hired a cultural
resource consulting firm, Larson Anthropological Archaeological Services (Larson),
from Gig Harbor, Washington, to conduct the initial assessment in June 1996
(Larson 1996). This assessment described what was known about the archaeological
site and cemetery and detailed the previous archaeological work that had been
done there. Most insightful was the information from the project associated
with the original construction of the wastewater plant in 1977, in which archaeologists
from Western Washington University recovered 40 burials (9 complete and 31
partial) in the portion of a Native American cemetery within the wastewater
plant boundaries and 20 burials outside the boundary (Grabert, Cressman, and
Wolverton 1978). According to Lummi Tribal members, a white fence once surrounded
the cemetery with graves marked with crosses. The human remains were eventually
returned to the Lummi Tribe for reburial (Larson 1996:6). Larson attempted
to tie the previous excavations to the current plant location, and to assess
the degree of disturbance of different site areas.

The Larson report commented that
the Lummi believe that parts of individuals and entire individuals were still
buried at the site and indicated their preference for no further disturbance
(Larson 1996:6). Larson suggested that the site was eligible for listing on
the National Register because the site had potential to address research questions
important to regional prehistory, and because it possessed important cultural
heritage values to members of the Lummi Indian Nation (Larson 1996:10). Larson
provided recommendations for archaeological mitigation and monitoring in different
types of cultural deposits, in areas where the deposits could not be avoided
during future construction.

On December 15, 1997, The Washington
State Historic Preservation Officer (SHPO) advised the U.S. Department of
Agriculture Rural Development Agency (Rural Development) that it would need
to evaluate the site for National Register eligibility and prepare a memorandum
of agreement or programmatic agreement to mitigate adverse effects resulting
from construction activities.

In April 1998, the City of Blaine
awarded a contract to Golder Associates (Golder), an international group of
earth engineering and environmental science consulting companies, to consult
with affected parties, prepare a treatment plan, submit a draft programmatic
agreement to affected parties, and execute the treatment plan (Golder 1998).
The Golder work was designed and directed by Gordon C. Tucker, an archaeologist
from Golder’s Denver Office. Tucker had completed his B.A. degree in anthropology
at Western Washington University in 1972, but had conducted almost all of
his cultural resource work outside of the Pacific Northwest since that time.
He had virtually no experience with Northwest Coast archaeology, shell middens,
human remains, consultation, or with Native Americans. The contract was for
$14,500 for tribal consultation and $41,000 for the mitigation of 45WH17;
funding for construction monitoring was estimated at $450/day and a contract
modification would be submitted at the appropriate time.

Based upon the information provided
in the Larson report (1996), Golder obtained a consensus determination of
eligibility for 45WH17 on May 11, 1998 (Whitlam 1998). Golder conducted geophysical
studies at the site on May 11-13, 1998; these studies “clearly delineated
the location and depths of compacted fill deposits, located target anomalies,
and identified utility lines” (Tucker 1999a:1). Golder then started preparing
a draft Programmatic Agreement, which Rural Development circulated to the
Washington State Historic Preservation Officer, the City of Blaine, and “interested
parties.

The Memorandum of Agreement and Treatment Plan

The next draft of the Programmatic Agreement was renamed
the Memorandum of Agreement (MOA) and became the legal document guiding the
cultural resource work at the Blaine Wastewater Treatment Plant. The MOA outlined
the mitigative actions agreed to by the three signatories in order to address
the adverse effects of the wastewater treatment facility expansion on site
45WH17. The MOA was signed by Rural Development on January 19, 1999; the Washington
State Historic Preservation Officer on January 26, 1999; and the Advisory
Council on Historic Preservation on February 3, 1999 (Rural Development 1999).

An important aspect of developing the MOA was consulting
with the Lummi. The intent of Rural Development was for the Lummi and the
City of Blaine to be concurring parties to the MOA. Golder was to conduct
the face-to-face consultation with affected parties, primarily the Lummi.
Consultation with the Lummi, however, did not result in the Lummi actively
participating in the development of the MOA as was hoped. Eventually, the
Lummi signed the earlier draft, referred to as the Programmatic Agreement,
but this was after the Rural Development had decided to proceed with the MOA
without the Lummi as a signatory (Andrew 1999).

The key parts of the final MOA were 1) preparation and
implementation of a treatment plan, which outlined mitigation of adverse effects
on 45WH17; 2) preparation and implementation of a site protection plan, which
called for monitoring during construction, regular reporting, and actions
to be taken if previously unidentified archaeological properties were discovered
during construction; 3) guidelines on curation, which outlined the role of
the Lummi in disposition of cultural materials; 4) handling of Native American
human remains, which required consultation with the Lummi Tribe if any human
remains were encountered, and referred to the dispute resolution process contained
in the MOA if objections were raised; 5) professional qualifications, which
required supervisors to meet or exceed the Secretary of Interior’s Professional
Qualifications/Standards (Federal Register 48 [190]:44738-44739]; and 6) dispute
resolution, which outlined the process that would be used if any of the parties
could not agree on a particular action.

The Treatment Plan (Golder 1999) was included as an attachment
to the MOA (Rural Development 1999). This was a substantive document over
forty pages in length, with an attached 20-page appendix detailing the results
of the geophysical investigations, which had been completed in May 1998. The
Treatment Plan provided a description of the Project, environmental setting,
and cultural setting extracted mainly from the initial assessment prepared
by Larson Anthropological Archaeological Services (Larson 1996). Research
issues to be addressed during the archaeological investigations were presented
in five paragraphs, the most substantive being the following:

Further archaeological
investigations at the site will, therefore, focus upon its role in a regional
and subsistence pattern which may have some temporal persistence. From a scientific
standpoint, there is still much to be learned from the site. According to
the ethnographic/ethnohistoric record, this area was a major village site;
however, to date, researchers have been unable to locate or analyze any structural
remains that may be associated with previous occupations. Investigating a
house feature at this site would provide insights into house construction
and social organization [Golder 1999:23].

Another focus was to locate human remains that might
be present and

Implement the most
expeditious and culturally sensitive procedures to protect them from further
harm. At the very least, such procedures will include ongoing and close consultation
with the Lummi [Golder 1999:23].

Final research issues identified were the need to monitor
construction activities to “help insure that unanticipated discoveries are
properly documented and evaluated” and the need for a protection plan to ensure
that protocols for treatments of cultural resources in the protected area
have been established (Golder 1999:23).

The Treatment Plan then identified methods to be used
throughout the project. Key points in each section relevant to this report
are provided below:

ŠPhase 1 Consultation: Consultation with the Lummi was
recognized as paramount because the site might be considered a traditional
cultural property and because it was likely to contain more human burials.
The plan was to approach consultation in three steps: introductory meetings,
discussions and then collaboration, which “incorporates the consultation required
during on-site excavations” (Golder 1999:23). The MOA would be executed after
the consultations.

ŠPhase 2: Field Investigations: Using information gained
from the earlier geophysical investigations, archaeological investigations
would involve two aspects. First, two intersecting backhoe trenches would
be excavated, one 25 meters long and the other 7 meters long, to “clarify
the stratigraphic relationships between disturbed fill and undisturbed deposits
and to characterize the composition of the fill” (Golder 1999:27). Backhoe
excavations would be monitored by at least one professional archaeologist
and stratigraphic profiles along one wall of each trench would be drawn and
photographed.

The second aspect of the archaeological mitigation was to excavate up
to twenty 1 m by 1 m excavation units where the backhoe trenching indicated
would be most appropriate. Methods would involve standard archaeological techniques;
shovels would be used in low density units.

In the event that human remains were encountered during the backhoe or
hand excavations, “all work will temporarily cease around those remains. RD,
the Lummi, SHPO, and City will immediately be contacted and the agreed-upon
procedures for the treatment of these remains will be implemented (Section
5.6)” (Golder 1999:23).

ŠPhase 3: Construction Monitoring. The purpose of the
construction monitoring was to ensure that significant cultural materials
were recognized and properly documented if encountered during construction.
If cultural materials were identified, construction work in the area would
cease and the find exposed and mapped in plan view by the archaeologist. Features
and structural remains would be bisected, one-half removed, and sketched and
photographed. “If the find consists of human remains of any sort, the RD,
Lummi, SHPO, and City will be contacted immediately and the remains will be
treated according to established protocol (Section 5.6)” (Golder 1999:29).

ŠPhase 4: Laboratory Analysis. This section contained
one paragraph on artifacts, one on dating, one on osteological remains and
twelve on faunal remains. Human remains would be treated as follows:

Analyses of human osteological remains, if recognized in the fill, will
be completed in situ. This method will have the added advantage of
not removing the burials from the general site area and avoiding excessive
handling of the remains, thus preventing unnecessary damage to fragile elements.
Where permissible, standard osteological measurements will be completed on
all elements. Gender analysis and age determinations will be undertaken using
both quantitative and qualitative analyses. Remains will also be closely examined
for various bone and tooth pathologies. The remains will be exhumed from the
ground and transported to a secure City facility and held there until their
final destination is determined. All human remains will be handled with the
utmost respect and sensitivity [Golder 1999:23].

ŠPhase 5: Reporting. Archaeological investigations would
be documented in several reports, as described below:

Upon completion of fieldwork [i.e., the backhoe trenching and 20 excavation
units], a preliminary report will be prepared that describes the results of
the geophysical and archaeological investigations. All interested parties
will review this report, and if accepted, then approval will be sought for
the pre-loading to commence.

A final, more detailed report would then be prepared conforming in style
and content to the Secretary of Interior’s Guidelines for Archaeological
Documentation. Results of the construction
monitoring would be incorporated into the final report [Golder 1999:35].

ŠTreatment of Human Remains. Human remains had been found at
Site 45WH17 previously and procedures were developed in case any remains were
found during the archaeological investigations or construction monitoring.
Rural Development initiated consultation with the Lummi early on with the
expectation of receiving explicit guidelines on the treatment and disposition
of human remains, but little guidance was obtained. The signatories of the
MOA made the following commitment:

Should human remains be encountered at the site, all work within the immediate
vicinity of the remains should cease. RD, the Lummi, SHPO, and City shall
be notified immediately. Treatment and removal of the uncovered remains will
proceed expeditiously with care and dignity [Golder 1999:38].

ŠSite Protection Plan. The Site Protection Plan consisted of
three paragraphs focusing on measures the City of Blaine should take once
the new Treatment Plan became operational. The Plan directed the City to obtain
the services of a professional archaeologist whenever ground-disturbing activities
were needed. If human remains were ever encountered, work would stop and the
City would contact the designated Lummi representative (Golder 1999:38-39).

ŠCuration. The plan was to curate collections and records at
Western Washington University. “Final disposition of any human remains will
be determined upon consultation between RD and the Lummi” (Golder 1999:39).

Implementation
of the Memorandum of Agreement and Treatment Plan

With the MOA in place, the Blaine
Wastewater Treatment Plant expansion was ready to begin. First, the archaeological
mitigation work would be performed. Then, after the results were disseminated
in a preliminary report and approved by the signatories, pre-loading could
begin (pre-loading is a construction term which apparently means bringing
in fill prior to construction to help compact the underlying sediments). Finally,
once actual construction began, archaeological monitors would be present to
document any cultural items encountered and take the appropriate measures
should human remains be unearthed.

Archaeological Mitigation

On February 8, 1999, the archaeological
mitigation fieldwork commenced. According to the preliminary letter report
filed three days after the excavations were completed, the archaeological
work began with the City of Blaine excavating four trenches (Tucker 1999a).
Three trenches were excavated to the top of shell midden deposits (2 meters
from the present ground surface) and two were excavated through the shell
midden to natural deposits (3.4 meters from present ground surface); trench
lengths were not provided. “The information gained from these trenches helped
determine the vertical and horizontal relationships of the intact cultural
deposits and guided the placement of the archaeological excavation units”
(Tucker 1999a:1). Golder then excavated twenty 1 m by 1 m units in three blocks
across the site, along with one more trench by the time the mitigation work
ended on February 19, 1999 (see Figure 3 in Appendix A). The three blocks
were described as follows:

ŠBlock 1. Fourteen 1 m by 1 m
units were placed in this block, which was located immediately east of the
existing access road.

ŠBlock 2. Four 1 m by 1 m units
were placed in this block, which was located at the eastern edge of the property.

ŠBlock 3. Two 1 m by 1 m units
were placed in this block, which was located in the northwest corner of the
treatment plant.

The
preliminary report indicated that human remains had been discovered during
the first day of trenching. Tucker collected and repatriated these items to
the Lummi Tribe on February 9, 1999. That same day, Tucker’s meetings with
Lummi staff resulted in an agreement on how future discoveries of human remains
would be handled. For the rest of the mitigation, a daily summary of each
day’s excavations would be faxed to a Lummi representative each day. On February
15, the daily summary for February 12 indicated an isolated human maxilla
was recovered; the Lummi had no response. According to the mitigation documentation
I have reviewed, no discoveries of human remains were reported during the
remainder of the mitigation.

ŠRecovery of a variety of worked
bone and antler tools, a small number of chipped stone tools, numerous mammal
and fish bones, hundreds of pounds of fire cracked rock (not collected)

ŠSeveral cultural features, including
steaming pits and a hearth

ŠStratigraphic profiles of two
adjoining walls in each block were drawn and numerous color photographs were
taken (Tucker 1999a:2).

Tucker
believed the work had satisfied the MOA and Treatment Plan, and that the crew
had “gathered enough data from the site to enhance substantially our knowledge
and understanding of the regional culture history” (Tucker 1999a:2). Based
upon the results, Tucker recommended that the City of Blaine be allowed to
commence pre-loading, and also committed to prepare an archaeological monitoring
plan for the construction excavations, scheduled for June and July 1999. Attached
to the letter report was the 1998 geophysical report that had been attached
previously to the Treatment Plan. In 10 days, an average of four trained archaeologists
and two laborers had completed the mitigation at this important prehistoric
and ethnohistoric site and cemetery and no recommendation was forthcoming
that additional work was needed to accomplish the research design.

Construction Monitoring

Construction began in early July
1999, following the pre-loading, which occurred in the spring. A two-man team,
supervised by Gordon Tucker, was on hand to monitor for archaeological deposits
and human remains. Two Lummi monitors were supposed to be part of the team,
but the City of Blaine refused to provide the required $14,000 cost, citing
budgetary constraints. As a result, there was no ongoing Lummi participation.

The following account of construction
monitoring from July 6 to August 2, 1999, is based on the transcribed field
notes of Gordon Tucker (Tucker 1999b). Construction monitoring commenced on
July 6, 1999. Several bones were recovered the first day, one of which was
thought might be human. On July 7, another bone was recovered that was also
thought could be human. A steaming pit was also encountered and recorded as
an archaeological feature. More bones and archaeological materials were recovered
on July 8. On July 9, confirmed human remains were apparently encountered:
“Recovered quite a few bones, most skeletal elements represented” (Tucker
1999b: 84). They took the weekend off, then on July 12, the archaeologists
continued “finding human bones in an area of about 2-3-m, surrounding the
original FS (AM)-6 find” (Tucker 1999b: 85). The excavation in this area ended
at noon. Little work occurred on July 13.

On July 14, Grant Stuart, City of
Blaine, came by expressing concern about the time being wasted when construction
was shut down. Tucker agreed to scale back from two archaeologists to one
archaeologist when little or no digging was going on, but for the main excavation,
two archaeologists would still be needed. This was because “we’ll be excavating
in a complex shell midden with human remains. There is no way one archaeologist
can handle it alone” (Tucker 1999b:86).

Work for the archaeologists did
not resume until July 19. On July 20, several bones were again encountered
that were possibly human. More bones and various cultural items were recovered
on July 21 and July 22.

Major construction excavation began
on July 26, 1999. That day, Burials A, B, C, D, E, and F were recorded. These
burials, represented by a varying number of skeletal elements, sometimes in
association with historic debris, were thought to have originated in disturbed
fill. On July 27, Burials G, H and I were recorded, Burial I being “relatively
in situ” (Tucker 1999b:93). On July
28, Burial I was “disinterred.” Feature A, a small firepit, was recovered,
as were Burials J, K, L, M, N, and O. The bones were boxed up into six boxes
and taken away (Tucker 1999b:96).

On July 29, Burials P, Q, R, S,
T, U, V, W, X, Y, and Z were recovered. Most of these burials were represented
by “scattered bones.” Burials X and Y were more or less intact individuals;
“Burial X left in place (what hasn’t already been excavated) until Monday.”
On August 2, Burial X was “exposed completely.” Burials AA and BB were recovered,
and Feature B, a small firepit was recovered. Burial BB was a fully articulated
individual, possibly “a pregnant female who died with child in utero”
(Tucker 1999b:100).

No mention of communication with
the Lummi or any of the MOA signatories is found in Tucker’s field notes.
In his March 31, 2002, deposition, Tucker indicated he had left a telephone
voice mail message with Theresa Pouley, Lummi Attorney, on the first day human
remains were discovered (Tucker 2002:4). Pouley, however, has stated that
she never received the message, though she did talk to Tucker on July 12 about
the fact that the City of Blaine would not pay for Lummi monitors (Pauley
2001:92). No other attempts were made to contact the Lummi, and no attempts
were made to notify the signatories of the MOA, as mandated by the MOA and
the Treatment Plan.

Project Shutdown, Termination of MOA, and Litigation

On August 2, 1999, Tucker returned
to his office in Colorado with the human remains that had been recovered to
date. Andrew Mason, another Golder archaeologist who had assisted Tucker earlier
in the project, replaced him that day. On August 3, Al Scott Johnnie, Lummi,
came by the Treatment Plant and observed human remains. He discussed the situation
with Andrew Mason, learning that many more human remains had been uncovered
and were on their way to Denver (Mason 2001:186). The Lummi reported the situation
to the SHPO and on August 6 the work at the construction site was stopped.
The Washington SHPO terminated the MOA on August 6, 1999, in a letter which
stated the following:

We have received the
faxes from the Lummi Nation, Golder Associates, and your agency regarding
the excavation and removal of more than 28 burials from the project site during
the period between July 26 through August 2. These actions were taken in direct
violation of the stipulations in the Memorandum of Agreement and the attached
Treatment Plan.

We are extremely disturbed by the
fact these Native American burials were excavated and removed from the state
without any notification or consultation with the Lummi Nation, our Office,
or your Agency despite a signed agreement that called for such actions. The
MOA explicitly called for treating the human remains with respect. Transferring
a sovereign nation’s ancestors to Denver without their consent or knowledge
does not fall under that definition. Further, under state law these actions
were taken in violation of RCW 27.44.030 and 27.44.040 [Brooks 1999].

On August 6, Lummi representatives flew to Denver, Colorado,
and took possession of the remains.

A Brief Review of the Case History

In late 1999 the Association of Washington Archaeologists filed a complaint
against Dr. Tucker with the RPA Grievance Coordinator alleging numerous violations
of the Code of Conduct and Standards of Research Performance. The Lummi Tribe
filed a similar complaint in the Spring of 2000. The initial complaints were
not immediately dealt with and the respective parties raised the issue with
the RPA again in early 2002. In March 2002, the Board of Directors of the
RPA appointed Hester Davis as Interim Grievance Coordinator to consider this
matter. Dr. Michael Moratto and Dr. Melvin Aikins were named as Grievance
Committee members. Their investigation into the complaints took place between
April and July 2002. The Committee concluded that Dr. Tucker had violated
several sections of the RPA Code of Conduct and the Standards of Research,
and submitted a Complaint against Dr. Tucker to the Standards Board. The Standards
Board received the Grievance Committee’s Complaint on 8 August 2002. Notice
of the Complaint was provided to Dr. Tucker on 6 September 2002 and a Hearing
scheduled for February 2003. The hearing was postponed at the request of Dr.
Tucker; the postponement agreement agreed to by all parties stipulated that
Dr. Tucker accept a voluntary suspension of his Register accreditation pending
the hearing, and waive any argument concerning the Register’s delay in proceeding
with the case. The hearing was rescheduled for July 2003. Prior to the hearing
date, Dr. Tucker submitted his resignation from the RPA and indicated he would
not attend the Hearing. The Grievance Coordinator provided the Standards Board
members with copies of all evidence in the case, and a conference call with
the Coordinator and the Board members was held on 23 July 2003. The Board
rendered its Decision in this matter in October 2003.

The Findings

The Board reviewed 36 documents provided by the Grievance Coordinator (see
attached list of documents submitted to the Board). Regrettably, Dr. Tucker
declined the opportunity to present additional evidence to the Board. The
Board took Dr. Tucker’s situation into account in its deliberations but feels
that the evidence cited below is more than sufficient to support its findings.

Overview of the Facts

The information provided to the Board identifies three fundamental problems
with this project and its implementation. While each of these problems reflects
the influence of multiple factors, including budget constraints, they are
issues for which the Board agrees Dr. Tucker had primary responsibility. These
problems crosscut each of the alleged violations of the Code of Conduct and
Standards of Research Performance discussed below. This review of the project’s
problems is presented to establish the context for the following discussion
of the allegations.

First, and most important, the Treatment
Plan (mitigation plan) proposed for the Semiahmoo site was seriously inadequate.
Dr. Tucker knew the site was a deeply stratified (up to 20 feet thick in places)
shell midden with features and burials. The Plan called for the excavation
of only 20 1x1 m units within the impact area, sampling less than 0.5% of
the project area. In addition, only 10 days were allocated for a crew of six
to conduct these excavations, in addition to monitoring two backhoe trenches.
Although a geophysical investigation was conducted prior to the excavations,
many of the identified anomalies were not subsequently archaeologically investigated
nor was the interpreted base of disturbed deposits confirmed across the majority
of the project area. Finally, the Lummi Tribe had made clear it was very concerned
not only with intact burials but also with any and all fragmentary human remains.
The Plan provided no opportunity to locate and identify these remains within
the direct impact area not examined in the excavation units. During the monitoring
phase of the project, burials were being excavated and removed in less than
an hour, clearly indicating that insufficient time had been allocated in the
Plan and budget for this aspect of the project.

The Board strongly feels that the Treatment Plan was grossly insufficient
to mitigate the impact of the wastewater plant expansion across the site.
This site had been deemed eligible for nomination to the National Register
of Historic Places and the geophysical survey had indicated that intact deposits
were present across much, if not most, of the project area. The limited excavations
do not provide an archaeologically meaningful sample of the information contained
within the impact area, nor do they come close to addressing and mitigating
the Lummi Tribe’s concerns. A sizable portion of this significant site was
destroyed without adequate documentation.

A second problem was the absence of experienced personnel. Neither Dr. Tucker,
nor any of the crew, had experience excavating shell middens. This limitation
is reflected by the shortcomings inherent in the Treatment Plan and budget
(see above), and may also have limited recognition of culturally significant
features and stratigraphy in the field. Of greater importance was the absence
of any personnel trained in human osteology. Previous investigations at the
site had recovered numerous burials and fragmentary human remains and the
Treatment Plan anticipated they would be encountered during this project.
During the monitoring phase of the project in particular, the necessity of
recognizing fragmentary remains in backhoe trench excavations was critical.
As the Lummi Tribe’s concerns and the Treatment Plan made clear, human remains
were to be identified and analyzed in situ, yet there was no one on the crew
with the requisite skills or knowledge.

The Board feels that the absence of a trained osteologist was a fatal error
in the implementation of the project. Given that one of the principal goals
was the identification and recovery of human remains, the lack of a project
member with the necessary skills is difficult to understand. As subsequent
work demonstrated, numerous human remains were found in the backdirt excavated
from the site indicating their presence throughout the construction area.

The third problem was the limited consultation with the Lummi Tribe. The Semiahmoo
site is a historically documented village of the Lummi Tribe with a known
cemetery; the Tribe has a direct and unquestionable association with and interest
in this site. The responsible federal agency, USDA Rural Development, directed
the City of Blaine and their archaeological consultant Golder and Associates
(Dr. Tucker’s employer) to consult with the Lummi on all aspects of the project.
As the project was being developed, a number of discussions were held between
Golder Associates personnel and the Tribe. However, at the onset of the fieldwork,
the Tribe had not yet provided a protocol for handling human remains, nor
had they signed the Memorandum of Agreement. Despite this, the recovery of
human remains during the onset of the mitigation phase of the excavations
established a working procedure between Dr. Tucker and the Tribe that continued
through this phase. During the monitoring phase of the project however, Dr.
Tucker allowed this procedure to collapse. After an initial attempt (telephone
voice mail message) to contact the Lummi, Dr. Tucker made no further efforts
throughout the monitoring phase to contact the Tribe, despite the recovery
of over two dozen burials and numerous fragmentary human remains. Dr. Tucker
subsequently removed the human remains to another state without discussing
this transfer with the Lummi or the State Historic Preservation Officer.

The Board strongly feels that it is incumbent upon the archaeologist in charge
to make and maintain the necessary consultations with the appropriate Indian
tribe. Although communication with the Lummi may not have been easy, the recovery
of numerous human remains required Dr. Tucker to find a means of consulting
with them. The Treatment Plan not only outlined a three-stage consultation
plan which was not fully followed (in part because the Lummi Tribe did not
act within the necessary time frame), but stated that when human remains are
found, the Federal Agency, State Historic Preservation Office, and the Lummi
Tribe will be contacted. Dr. Tucker did not make these contacts nor did he
delegate this responsibility to a project staff member.

The Allegations

The original complaints by the Association of Washington Archaeologists and
the Lummi Tribe jointly cited 10 alleged violations of the RPA Code of Conduct
and eight alleged violations of the RPA Standards of Research Performance.
The Grievance Committee investigation concluded that there was no evidence
to support three alleged violations of the Code of Conduct and five alleged
violations of the Standards of Research Performance, and the Standards Board
concurs in this assessment. The Standards Board did find evidence to support
seven alleged violations of the Code of Conduct and three alleged violations
of the Standards of Research Performance. In addition, the Standards Board
identified two additional violations of the Code of Conduct and one additional
violation of the Standards of Research Performance. A total of nine violations
of the Code of Conduct and four violations of the Standards of Research Performance
are documented. Each of the unsupported and supported allegations is discussed
below.

Unsupported Allegations

Code of Conduct:

I.1.1e: An archaeologist shall support and
comply with the terms of the UNESCO convention on the means of prohibiting
and preventing the illicit import, export, and transfer of ownership of cultural
property, as adopted by the General Conference, 1 November 1970, Paris.

The Standards Board concluded that the UNESCO Convention is not applicable
to this project and thus this section was not violated.

The Standards Board concluded there was no evidence Dr. Tucker engaged in
any of these activities during this project.

II.2.1f: An archaeologist shall know and comply
with all federal, state, and local laws, ordinances, and regulations applicable
to her/his archaeological research and activities.

The Board concluded there was no evidence Dr. Tucker violated any laws during
this project.

Standards of Research Performance:

I.1.2: The archaeologist must
inform herself/himself of relevant previous research.

The Board concluded there was not a violation of this section. Dr. Tucker
had clearly read the reports on previous work at the site and incorporated
that information into the Treatment Plan.

I.1.5: The archaeologist must
comply with all legal requirements, including without limitation, obtaining
all necessary governmental permits and necessary permission from landowners
or other persons.

The Board concluded Dr. Tucker did not violate this section. It was the responsibility
of the Federal Agency involved in the project to address these requirements;
the Memorandum of Agreement satisfied all necessary permissions.

III.3.3. The methods employed in data collection
must be fully and accurately described. Significant stratigraphic and/or associational
relationships among artifacts, other specimens, and cultural and environmental
features must also be fully and accurately recorded.

The Board concluded Dr. Tucker did not violate this section. The notes available
for inspection meet minimum standards of data collection.

IV: During accessioning,
analysis, and storage of specimens and records in the laboratory, the archaeologist
must take precautions to ensure that correlations between the specimens and
the field records are maintained, so that provenience relationships and the
like are not confused or obscured.

The Board concluded Dr. Tucker did not violate this section. Copies of field
notes provided to the Board indicate provenience control was maintained over
the field collections. An allegation stated that mold had been observed on
animal bones associated with bags of human remains, however the evidence is
unclear. Dr. Tucker stated that mold was not present when the remains were
turned over to the Lummi and an unknown period of time had occurred between
then and the analysis of the remains when mold was discovered.

VI: The archaeologist
has a responsibility for appropriate dissemination of the results of her/his
research to the appropriate constituencies with reasonable dispatch.

The Board concluded Dr. Tucker did not violate this section. The Treatment
Plan required the submission of a preliminary report at the end of the mitigation
phase of the fieldwork. A short letter report summarizing the results of the
fieldwork was accepted by the Federal Agency and other parties as the required
report. The final report was to include the results of the mitigation and
monitoring phases of the project. With the termination of the project and
Dr. Tucker’s resignation from Golder Associates, Inc. employment, the Board
believes that his personal responsibility for the final report ended.

Supported Allegations

Code of Conduct

I.1.1b An archaeologist shall actively
support conservation of the archaeological resource base.

In this circumstance, “conservation”
is construed to include the preservation of data within a site when physical
preservation is not possible. As a result of the inadequate Treatment and
Monitoring Plans, there was insufficient time and personnel to recover a meaningful
sample of the relevant data from this National Register eligible site. As
a result, much of the site was destroyed without proper scientific documentation.
The Board feels it was Dr. Tucker’s responsibility to insist upon a level
of effort commensurate with the site and its potential, and failing that,
to decline to participate in a poorly funded and inadequate research project.
The Board believes Dr. Tucker violated this section.

I.1.1c An archaeologist shall be sensitive
to, and respect the legitimate concerns of groups, whose culture histories
are the subjects of archaeological investigations.

The Treatment Plan specified three stages of consultation with the Lummi Tribe
to determine the appropriate manner for handling human remains found at the
site. Dr. Tucker was not directly responsible for conducting these discussions
and they did not proceed through all the outlined stages, however, as project
Principal Investigator, he bore the ultimate responsibility for executing
the Plan as specified in the Memorandum of Agreement. Despite the lack of
an agreed upon strategy for dealing with human remains, Dr. Tucker made appropriate
efforts as the fieldwork began. When the first human remain was encountered
during the mitigation fieldwork, he contacted the Lummi the following day
and immediately repatriated the specimen. At that time, an agreement on how
future discoveries of human remains would be handled was reached. At the conclusion
of each day during the mitigation project, Dr. Tucker faxed a summary of that
day’s activity to the Tribe. One other human remain was identified during
the mitigation project and the Lummi notified; they did not respond to this
notification.

During the monitoring phase of the project, this system collapsed. Human remains
were identified during the first few days of the monitoring. Dr. Tucker states
he left a telephone voice mail message with Theresa Pouley, Lummi Tribal attorney,
on the first day human remains were found; Theresa Pouley does not remember
receiving the message. Despite the recovery of 27 additional burials and concentrations
of human remains over the next several weeks, Dr. Tucker made no further effort
to contact the Lummi. Furthermore, once the monitoring was completed, he drove
the remains to another state, passing within a few miles of the Lummi Tribal
reservation as he did so, without ever consulting the Tribe.

The Board acknowledges the difficulties Dr. Tucker and Golder Associates personnel
had in communicating with the Lummi and obtaining timely responses from them.
Yet this difficulty in no way absolves Dr. Tucker for his lack of effort in
trying to communicate with the Tribe. It is not clear under the Memorandum
of Agreement which agency was responsible for notifying the Lummi, however,
the Board feels that it is ultimately Dr. Tucker’s responsibility to ensure
that someone was notifying them. Dr. Tucker did not notify the Federal Agency
and the State Historic Preservation Office during the monitoring project as
required under the MOA, so those agencies could not have notified the Tribe.
Given the recovery of numerous burials, it was absolutely imperative that
the Lummi be contacted and arrangements made to properly handle the remains.
This project represents a significant failure to consider the legitimate concerns
of the Lummi Tribe. Dr. Tucker’s failure to communicate with the Tribe concerning
his findings and proposed actions, or to ensure that someone was notifying
them of these issues, constitutes a serious violation of this section.

I.1.2a An archaeologist shall not engage
in any illegal or unethical conduct involving archaeological matters or knowingly
permit the use of his/her name in support of any illegal or unethical activity
involving archaeological matters.

The allegation was that the removal of the human remains across state lines
violated the terms of the MOA and Washington State law. The Grievance Committee
did not find any evidence indicating this action was illegal. Golder Associates
was not a party to the MOA and therefore Dr. Tucker, as its employee, did
not legally violate the MOA.

Dr. Tucker wrote the Treatment Plan required by the MOA. The budget prepared
by Tucker and Golder Associates was in response to the amount of money the
City of Blaine made available for the archaeological work. This sum was clearly
inadequate and inappropriate for mitigating the impact on this site. Tailoring
a project to meet funding constraints that do not allow for the necessary
archaeological work to be undertaken is unethical. The Board believes that
by designing and placing his name on a Plan lacking critical elements (including
sufficient funding) minimally necessary to adequately mitigate the impact
upon this site, Dr. Tucker ethically violated this section.

I.1.2b An archaeologist shall not give
professional opinion, make a public report, or give legal testimony involving
archaeological matters without being as thoroughly informed as might reasonably
be expected.

In this case, the Treatment Plan prepared by Dr. Tucker represents his professional
opinion. The issue is not whether Dr. Tucker had read the previous research
(he clearly had as noted in the unsupported allegation I.1.2 above), but whether
he had made appropriate use of that information. It is the Board’s opinion
that thorough consideration of the earlier research could not have resulted
in a professional opinion that two weeks of excavation and monitoring by two
archaeologists during construction were adequate at a deeply stratified site
containing features and burials. In addition, the lack of experience in digging
shell middens, and identifying and recovering human remains contributed to
the development of an uninformed Treatment Plan. There is no evidence that
Dr. Tucker spoke with archaeologists experienced in shell midden excavations
or consulted research reports beyond that reported for the Semiahmoo site.
The Board believes that Dr. Tucker violated this section by not being as informed
as was necessary for this particular site.

I.1.2d An archaeologist shall not undertake
any research that affects the archaeological resource base for which she/he
is not qualified.

Dr. Tucker met the standards for a professional archaeologist promulgated
by the National Park Service and the Register of Professional Archaeologists.
These standards however, are not adequate benchmarks for determining whether
an individual is sufficiently trained and experienced to serve as a Principal
Investigator in the investigation of any and all types of sites. In this case,
Dr. Tucker had no prior experience excavating stratified shell middens, or
in the excavation and in situ analysis of human remains. When an archaeologist
lacks the requisite experience and/or skills, it is their responsibility to
the archaeological record to ensure that individuals with the appropriate
knowledge are present during the project. There is little evidence that Dr.
Tucker made any serious efforts to overcome these limitations during the development
of the project plans. The Board believes that because Dr. Tucker was not fully
qualified to undertake this project and he failed to insist that Golder Associates
hire individuals with the relevant skill, a violation of this section occurred.

II.2.1h An archeologist shall honor and comply
with the spirit and letter of the Register of Professional Archaeologist’s
Disciplinary Procedures.

In joining the Register of Professional Archaeologists, Dr. Tucker agreed
to submit to disciplinary procedures should that event occur. By resigning
prior to an impending Hearing, he violated that agreement. The Board believes
Dr. Tucker violated this section.

III.3.1b An archaeologist shall refuse to comply
with any request or demands of an employer or client which conflicts with
the Code and Standards.

Golder Associates and Dr. Tucker accepted the financial limitations given
by the City of Blaine without any apparent discussion with the City that this
level of funding was seriously inadequate to mitigate the adverse affect upon
the site. It is a reasonable inference that the limited Treatment Plan is
a direct reflection of client and management pressures to keep costs down.
As a result, the Board believes that the client’s priorities were placed above
those of the archaeological resource or the Lummi Tribe. The Board believes
these actions constitute a serious violation of this section by Dr. Tucker.

III.3.1c An archaeologist shall recommend to employers
or clients the employment of other archaeologists or other expert consultants
upon encountering archaeological problems beyond her/his experience.

Dr. Tucker had no experience excavating stratified shell middens, working
with Native American Tribes, or in identifying and analyzing human remains.
Each of these areas was prominent in the Treatment Plan developed by Dr. Tucker.
Other Golder personnel with experience in Native American consultation initially
handled consultation with the Lummi Tribe, and it is reasonable to expect
that Dr. Tucker would insist on employing individuals experienced in shell
midden excavation and human osteology. This need is particularly evident when
the Treatment Plan states that human remains will be analyzed in situ; exactly
how Dr. Tucker anticipated undertaking this analysis in the field was never
addressed in the documents available to the Board. The Board believes that
once numerous human remains began appearing during the monitoring project,
Dr. Tucker should have insisted to Golder Associates that an experienced osteologist
be made immediately available. By planning a research project that did not
ensure that individuals with the requisite experience would be available,
and by participating in field activities for which he was not experienced,
Dr. Tucker violated this section.

III.3.2e An archaeologist shall not recommend or
participate in any research which does not comply with the requirements of
the Standards of Research Performance.

The Board finds that Dr. Tucker violated several sections of the Standards
of Research Performance as discussed below. By not complying with the requirements
of the Standards, Dr. Tucker is in violation of this section.

Standards of Research Performance

I.1.1 The archaeologist
must assess the adequacy of her/his qualifications for the demands of the
project, and minimize inadequacies by acquiring additional expertise, by bringing
in associates with the needed qualifications, or by modifying the scope of
the project.

This issue has been addressed in the Code of Conduct Sections I.1.2d and II.3.1c
above. Although Dr. Tucker did initially note to Golder personnel that a person
knowledgeable in human remains might be useful on the crew, when this suggestion
was not followed up he made no additional efforts to argue for this expertise.
For the reasons discussed in the previous sections, the Board believes Dr.
Tucker violated this section.

I.1.3. The archaeologist must
develop a scientific plan of research which specifies the objectives of the
project, takes into account previous relevant research, employs a suitable
methodology, and provides for economical use of the resource base (whether
such base consists of an excavation site or of specimens) consistent with
the objectives of the project.

The Treatment Plan research design briefly mentions locating a structure for
insights into house construction and social organization, and chronological
issues as research themes. Much more discussion is given to possible analyses
of faunal remains recovered at the site. There is no discussion of other research
avenues (lithic technology, environmental adaptation, resource procurement
and commodity exchange systems) noted by previous researchers at the site.
Furthermore, there is no discussion of research themes related to the human
remains recovered at the site. Even given the limited questions addressed
in the Plan, the proposed mitigation excavations were severely inadequate
given the documented data potential of the site. There is no mention of how
a structure would be identified, much less documented, when the only excavation
strategy was a series of 1x1 m units. The Plan also does not provide sufficient
documentation explaining how the Lummi Tribe’s concerns about the discovery
and identification of fragmentary human remains across the entire project
area would be addressed The proposed research design and excavation strategy
does not begin to represent an “economical use of the resource base,” nor
does it come close to addressing the concerns of the Lummi Tribe. The Board
believes there is a serious violation of this section.

I.1.4. The archeologist must ensure
the availability of adequate and competent staff and support facilities to
carry the project to completion, and of adequate curatorial facilities for
specimens and records.

The issue of adequate and competent staff during the field project has been
addressed under the Code of Conduct Sections I.1.2d and II.3.1c, and the Standards
of Research Performance Section I.1.1 above.

The Treatment Plan indicates the collection and records will be curated at
Western Washington University but Dr. Tucker did not arrange this with University
officials prior to beginning the fieldwork. Dr. Tucker did initiate discussions
about curation after the mitigation project was completed.

For the reasons cited in the previous sections, the Board believes Dr. Tucker
violated this section.

II. In
conducting research, the archaeologist must follow her/his scientific plan
of research, except to the extent that unforeseen circumstances warrant its
modification.

Dr. Tucker did follow the research design outlined in the Treatment Plan,
with one critical exception. The Plan states “Analysis of human osteological
remains, if recognized in the fill, will be completed in situ” with
standard osteological measurements, gender analysis and age determinations
completed on all elements. There is no evidence that any of these analyses
were conducted in the field. The failure to follow the Plan almost certainly
reflects the lack of expertise by Dr. Tucker or any member of his crew to
conduct these analyses. In the evidence presented to the Board, there is no
indication that Dr. Tucker felt “unforeseen circumstances” had necessitated
a change in strategy, on the contrary, the monitoring project proceeded largely
as proposed in the Monitoring Plan. The Board believes Dr. Tucker violated
this section.

Summary

The original complaints filed against Dr. Tucker concerning his actions at
the Semiahmoo site (45WH17) cited 10 possible violations of the Register of
Professional Archaeologists Code of Conduct and eight possible violations
of the Standards of Research Performance. The Grievance Committee investigation
identified seven potential violations of the Code of Conduct and three potential
violations of the Standards of Research Performance. The Standards Board review
of the evidence presented to it finds that Dr. Tucker violated nine sections
of the Code of Conduct (I.1.1b, I.1.1c, I.1.2a, I.1.2b, I.1.2d, II.2.1h, III.3.1b,
III.3.1c and III.3.2e) and four sections of the Standards of Research Performance
(I.1.1, I.1.3, I.1.4 and II).

Disciplinary Action

The history of events at the Semiahmoo site reveals that many individuals
and entities, including the City of Blaine, the State Historic Preservation
Office, the USDA Rural Development, the Lummi Tribe, and Golder Associates,
contributed to this unfortunate situation. Some factors were beyond the control
of Golder Associates and its employee, Dr. Gordon Tucker. The archaeological
investigation of the Semiahmoo site however, was the responsibility of Dr.
Tucker and he bears primary accountability for the development of the Treatment
and Monitoring Plans and conducting the fieldwork.

The Standards Board finds Dr. Tucker violated nine sections of the RPA Code
of Conduct and four sections of the Standards of Research Performance. These
violations involve three major issues:

1) that Dr. Tucker developed a Treatment Plan and conducted an excavation
that was grossly inadequate for a stratified shell midden up to 20 feet thick
with numerous features and burials known to be present. This situation came
about, in part, because of Dr. Tucker’s lack of experience with shell midden
excavations, a commitment by Golder Associates to keep the project costs within
the inadequate limits specified by the City of Blaine, and the failure by
Dr. Tucker to comprehend the results of previous investigations at the site
and what they portended for future investigations. The Treatment Plan resulted
in the excavation of only 0.5% of the site within the impact area, a sample
that is seriously inadequate for a site of this complexity, depth and significance.

2) that Dr. Tucker failed to insist upon having adequately trained personnel
at the site to accomplish the goals stated in the Treatment Plan. The Treatment
Plan and the concerns of the Lummi Tribe made it clear that identification
of fragmentary human remains, as well as the in situ analysis of human remains,
was a principal goal of the project. There was no one on the crew who had
the requisite skills to accomplish this goal.

3) that Dr. Tucker failed to adequately and consistently consult with the
Lummi Tribe, or to ensure that someone was keeping them informed of events
at the site. This failure is especially evident during the monitoring phase
of the project when numerous burials and human remains were identified but
other than one message left on a telephone voice mail, no attempts were made
to inform the Lummi of these finds. The human remains were removed from the
state without any consultation with the Lummi. While the Memorandum of Agreement
is unclear as to which party to the MOA was technically responsible for contacting
the Lummi, there is no doubt that it was ultimately Dr. Tucker’s responsibility
to ensure that the Tribe received all the necessary information.

The Standards Board believes these issues get at the heart of what the Register
of Professional Archaeologists represents. An RPA should act to preserve,
or when necessary, conserve the information inherent in the archaeological
record and do so in a way that provides for the maximum benefit to all interested
parties. This did not happen in this case. The Board believes this case represents
an egregious violation of the RPA Code of Conduct and Standards of Research
Performance. Consequently, it is the Decision of the Standards Board that
Dr. Gordon C. Tucker, Jr., be expelled from the Register of Professional Archaeologists.

References Cited

Andrew, Laurel A.

1999 Letter of Lummi Indian Tribe. United States
Department of Agriculture, Rural Development.

Brooks, Allyson

1999
Letter to Richard Butler, USDA Rural Development. State of Washington, Department
of Trade and Economic Development, Office of Archaeology and Historic Preservation.

26.
Letter from Whatcom County Executive to Tim Ballew, Lummi Indian Business
Council, March 16, 1999.

27.
Copy of Record of Pre-construction Conference and accompanying notes, June
28, 1999.

28.
Lummi Indian Nation complaint to the RPA against Dr. Gordon Tucker, May 26,
2000.

29.
Resolution 99-87 of the Lummi Indian Business Council concerning the Lummi
Nation’s Response to Semiahmoo Desecration

30.
Letter from Richard Baker, USDA Rural Development, to Anthony Mortillaro,
City of Blaine, concerning procedures to follow in the event of finding human
remains, August 5, 1999.

31.
Letter from Allyson Brooks, State Historic Preservation Officer, to Richard
Baker, USDA Rural Development, concerning termination of the Memorandum of
Agreement for the City of Blaine Wastewater Treatment Facility project, August
6, 1999.

32.
Copy of letter from Michael Trow, Attorney, to Mary McBride, USDA Rural Development
State Director, concerning Memorandum of Agreement for project, August 10,
1999.

33.
Report on Remains Recovered During the Initial Field Testing at Blaine WWTP
in February of 1999, by Alyson Rollins, August 9, 2001.

36.
Memorandum from Gordon Tucker to William Duffy, City of Blaine, concerning
acitivities already completed at the project site and those remaining to be
completed, April 1, 1998.

[1] Dr. Darby Stapp, RPA, Director of the
Hanford Cultural Resources Laboratory wrote the Project History section, as
part of his Expert Opinion report submitted to the Grievance Committee and is
reproduced here with his permission.